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169 West’s Education Law Reporter 1 (Nov. 7, 2002) COMMENTARY SERVING STUDENTS WITH DISABILITIES IN CHARTER SCHOOLS: LEGAL OBLIGATIONS AND POLICY OPTIONS* By Paul T. O’Neill, J.D., M.Ed., Richard J. Wenning And Elizabeth Giovannetti, M.S.W.** We have recently conducted a broad review of authorities such as case law, statutory law, administrative orders and opinion letters, research reports and law review articles in order to develop a better understanding of the ways in which special education obligations, such as local educational agency (“LEA”) responsibilities, currently apply to charter schools. This article presents the results of that review and provides a number of policy options based on our analysis. BACKGROUND Charter schools are public schools, authorized under the laws of many states, which are freed from most state and local laws governing schools so that they are free to create innovative educational programs focused on a particular educational approach or mission. 1 In exchange for this autonomy, they are required under their contract, or charter, with their authorizing agency to demonstrate positive academic results within a relatively short period of time usually ranging from three to five years. 2 Charter schools do not charge tuition – they receive public funding from district, state and federal sources attributable to each enrolled student. 3 In order to allow charter schools to innovate, states and localities have exempted them from many of the restrictions that they impose on conventional public schools, but waivers do not extend to federal law. 4 Particularly in the area of special education, federal laws can impose very substantial obligations and restrictions on charter schools. Because most state charter laws do not address these obligations in great detail; federal disability laws in general were enacted before the advent of charter schools; and courts have so far said very little on this point, the link between charters and special education is murky. In part, this is a problem of timing -- special education mandates predate charter school laws. As one commentator has put it: “This problem, common in law, is one of determining how to apply preexisting legal mandates -- in this case,
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federal disability law -- to new legal entities and in light of new policy objectives -- here, charter schools and deregulation.” 5 This much is clear: charter schools must be inclusive. Except in the most extreme circumstances, charter schools are not allowed to restrict the admission of students with disabilities. Charter schools are not permitted to limit the participation of students with disabilities in their programs unless some limitation is called for in a child’s individual education plan (“IEP”) (such as resource room or other pull-out services). Because charter schools thrive on autonomy and, by their nature, put primary emphasis on mission, such extrinsic obligations and inflexible requirements can present them with serious challenges. 6
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